The case against PACER: tearing down the courts’ paywall

US law says that federal court records are in the public domain. So why do the …

If you want to find out how the Obama administration is spending the stimulus money, you can go to recovery.gov for detailed spending data. Many executive branch agencies provide information about their activities via the government's regulations.gov portal. And the Library of Congress has the Thomas system, which gives the public free, searchable access to information about the activities of the legislative branch. But the judicial branch is a conspicuous laggard when it comes to making public documents available online. Theoretically, public access to federal court records is provided by a Web-based system called PACER. Unfortunately, PACER locks public documents behind a paywall, lacks a reasonable search engine, and has an interface that's inscrutable to non-lawyers.

The courts are coming under increasing pressure to address these flaws, and last year, RSS pioneer Aaron Swartz and open government activist Carl Malamud took matters into their own hands. The courts had launched a pilot program that gave free PACER access to patrons of selected libraries, so Swartz and Malamud went to the libraries with thumb drives and used a Perl script to download as many documents as they could. They got more than 2 million documents before the courts abruptly canceled the trial. The documents—about 700 GB in total—are now available from Malamud's website, but there are still terabytes of public documents locked behind PACER's paywall.

On February 27, Sen Joe Lieberman (I-CT) (a consistent advocate of public access to taxpayer-funded documents) sent the courts a letter asking some pointed questions about PACER. Noting that the 2002 E-Government Act had instructed the courts to move toward free public access to court records, and that the judiciary had a $150 million surplus in its Information Technology Fund, Lieberman asked the courts to justify continuing to charge 8 cents a page for these documents.

On March 26, the courts responded to Lieberman's letter, arguing that the fees it collects are necessary to cover the costs of running the system. It also pointed to a number of steps that have been taken in recent years to make PACER more accessible. As we'll discuss below, some of the claims in the letter were disputed by the experts Ars talked to, and the courts declined to answer our follow-up questions.

In this feature, Ars takes stock of online access to federal court records in the United States. We'll discuss how the system got where it is today, look at where there's room for improvement, and talk to two experts on open government about the prospects for reform. The bottom line is that the courts deserve credit for the progress they made in the 1990s, but a lot more work is needed to bring PACER into the 21st century.

The importance of public access to the law

Public access to court records might seem like something only lawyers would care about, but James Grimmelmann, a professor at New York Law School, disagrees. "If there are secret laws, it's really hard to say that those are laws in any meaningful sense at all," Grimmelmann says. "There are lots of areas of law in which the statute is very short, but the case law is incredibly long and important." For example, the statutory definition of fair use is only about a paragraph long. To understand how the concept will be applied by the courts, you need to review the hundreds of judicial opinions that have defined its contours.

To ensure broad public access, the courts have long held that court records are not subject to copyright.

Grimmelmann also points out that public access to court records keeps courts honest. If court activities are secret, the public will have no way to verify that the court's procedures and decisions are fair and consistent with the law. Public access also promotes equality before the law by ensuring that those of limited means will not be disadvantaged by a lack of access to information.

To ensure broad public access, the courts have long held that court records are not subject to copyright. That means that once a user has obtained a court document, he is generally free to redistribute it without payment. But until the rise of the Internet, practical barriers limited the dissemination of legal records. Courts produce millions of pages of documents every year, and it would have been impractical to distribute paper copies of every document to public libraries. In principle, anyone could have physically driven down to a courthouse and asked to see copies of court records, but practically speaking only practicing lawyers and a handful of sophisticated journalists and academics knew how to navigate this system successfully.

Broader and more convenient access to court records allows greater public understanding and scrutiny of our legal system. As information technology makes broader availability economically feasible, public officials have an obligation to respond by using those technologies to expand public access.

A great leap forward

There is plenty to criticize about PACER, but it's also important to acknowledge what the courts have done right. The initial creation of PACER in 1988 was a huge improvement over the existing system of paper records. Working attorneys found it extremely convenient to be able to monitor the progress of cases they were working on from the comfort of their offices. The system charged per-minute fees for dial-up services, but these were seen as a small price to pay for convenience, and such fees were not unusual for commercial online services at the time.

The courts steadily improved the system during its first decade in existence. Steve Schultze, a fellow at Harvard's Berkman Center, tells Ars that the original dial-up system provided only basic case and docket information; lawyers wanting the full text of documents still had to go down to the courthouse to retrieve them. But during the 1990s, more and more documents were added to the system.

In 1998, the system was moved to the Web. Attorneys could access PACER using a Web browser rather than a proprietary dial-up service. And instead of paying per-minute dialup fees, Web-based PACER users are charged on a per-page basis.

Falling behind

The courts are justifiably proud of the work they did to modernize PACER during its first decade. Creating PACER and then moving it to the Web were great strides for open access to court records. Unfortunately, in the last decade the courts have not been able to keep up with the pace of online innovation. PACER continues to serve legal professionals well enough, but in an age where the rest of us have come to expect easy access to public documents, PACER is looking increasingly anachronistic.

Schultze argues that most of PACER's problems can be traced back to the decision to put federal court records behind a paywall. Before users can log into PACER, they must provide the PACER Service Center with registration information and a credit card number. Users are charged eight cents per page, and HTML documents such as search results are broken up into arbitrarily defined "pages" for billing purposes. Even an empty search result costs eight cents.

Paying eight cents a page is not a major burden for working attorneys, who can often pass these fees along to their clients. But the paywall is a major deterrent to members of the general public who access court records only occasionally and are likely to be intimidated by the system's clumsy search tools. The paywall also makes it difficult for academics to perform comparative research on large numbers of court cases, and it makes it prohibitively expensive for third parties to improve access to the documents. Google, for example, can't index or re-publish these documents (as it has done with the patent database) unless it is willing to pay millions of dollars in PACER fees.

As a result, ordinary users are stuck using the search tools PACER provides. And Schultze points out that those tools leave a lot to be desired. PACER is designed for finding particular cases based on characteristics such as date, case number, or the names of the parties. There's no full-text searching option, and only very limited keyword search. Even worse, every federal court runs its own instance of the PACER software, each with its own idiosyncrasies.

There are alternatives for those willing to pay a premium. Commercial databases such as LexisNexis and WestLaw offer more sophisticated search tools that span multiple courts, but these tools have flaws of their own: access is far more expensive than PACER; the information in these databases may not be as current or as comprehensive; and although their search tools are better than PACER's, they're not nearly as good as the leading Web search engines.